Swell Conditions at the Berth
Liability for damage arising out of swell conditions at the berth
A vessel’s ability to perform cargo operations can be affected by ocean swell. At this time of year, the Club often receives reports of vessels calling at ports in the eastern tropical areas of the Pacific where the vessel’s mooring lines have parted at the berth and this has been blamed on swell conditions.
The owner may seek to attribute such damage to a breach of the safe port or safe berth warranties in the charter and try to recover their losses from the charterer. Whether this claim is a good one will be a mixed question of fact and law.
The English law definition of a safe port or berth for this purpose has not changed for sixty years:
“a port will not be safe unless, in the relevant period of time, the particular ship can reach it, use it and return from it without, in the absence of some abnormal occurrence, being exposed to danger which cannot be avoided by good navigation and seamanship”
The Eastern City  2 Lloyd’s Rep 127, 131 per Sellers LJ
The “particular ship” must therefore be suitable for the port or berth in question at the material time. The vessel’s size and draft may be an issue if they render the ship especially vulnerable to movement under the prevailing swell conditions.
Those swell conditions must also not be an “abnormal occurrence”, which means the Owner cannot claim against the Charterer for freak events. Rather, the danger experienced must be characteristic of the port or berth for that time of year.
This is often the case with swell. Swell waves are not wind waves. Wind waves are generated by the immediate local wind whereas swell is a series of mechanical waves generated by distant weather systems over an extended duration. Swell conditions may develop seasonally.
For the Owner to have a good claim, the damage must also not really be attributable to a failure to exercise “good navigation and seamanship”. Consequently, the charterer’s defence may call into question the vessel’s mooring arrangement, including the number of lines and the appropriate use of bow, stern and spring lines. The adequacy of the lines in terms of size, age, wear and appropriate rotation may also be under scrutiny. The charterer may challenge the Master’s decision not to use hold-in tugs. In essence, the charterer will be arguing that the port or berth was actually safe and the true cause of the damage was the owner’s failure to exercise good seamanship or the unseaworthiness of the vessel’s lines. The plausibility of this may depend on the dominance of the swell conditions and whether other vessels at the port can be shown to have suffered similar incidents.
These are some of the typical issues which arise where the charterer has warranted the safety of the port. Where the port is warranted safe, this will encompass all the berths within the port and the charterer will therefore be on risk for damage arising due to unsafe characteristics of the berth. The position is however different where the charter terms identify a named port with no warranty of safety. Where there is no warranty of port safety, the shipowner is absolutely liable to have the vessel call at the port. The owner is therefore on risk for damage arising due to unsafe characteristics of the port and cannot hope to pass on liability to their charterer for any ensuing loss.
What happens therefore where there is no safe port warranty but there is a safe berth warranty and the vessel suffers damage at the nominated berth due to dangerous swell? The legal requirements of a safe berth warranty require the berth to meet the same standard of safety as discussed above in relation to a safe port. In these circumstances, the charterer has warranted the safety of the nominated berth but the owner has taken on the risk of having the vessel call at the port.
Is the charterer on risk for damage caused by swell at the berth or is the owner on risk?
The leading English case of The APJ Priti  2 Lloyd’s Rep 37 confirms that the safe berth warranty will only cover risks which are peculiar to the berth. The unsafety referred to must accordingly be particular to the nominated berth and not general to the port as a whole or all the berths in it. There will be no breach by the charterer even if the nominated berth is unsafe, if every berth or the port as a whole is unsafe in the same way and to the same extent.
Of course, seasonal swell conditions would normally be expected to be a characteristic of the port as a whole. It is not easy to imagine a solitary berth at a port which is unique in being subject to swell. Unless the nominated berth is in a location which is especially exposed to swell with the result that it is peculiarly unsafe compared to other berths in the port, any harm caused by swell will not be recoverable from the charterer. The damage will have been caused by a risk for which the owner is responsible, namely the risk that the port named in the charter is unsafe.
The Club has encountered instances where the charter contains a named port with only a safe berth warranty but the owner has alleged that damage caused by swell gives rise to an unsafe berth claim.
It is interesting that the very evidence which may be relied on to show that the incident is not an “abnormal occurrence”, namely evidence of similar incidents at other berths in the port, will actually support such a charterer in defending the claim by showing that the danger was not unique to the nominated berth.
The position appears to be the same under US law (see The Maria GL SMA 2506 (1988)). Regardless of the safe berth warranty, by accepting a named port, the owner is taken to have assumed the risks which normally attend cargo operations there. The owner will consequently be unable to claim for broken mooring lines which snap due to swell conditions that are normal for the time of year.
Charterers should be alive to both the legal meaning of safety and the allocation of risk for port safety as compared to berth safety under their charter terms. Those wishing to put the situation beyond doubt could include a bespoke charter clause, such as:
“Owners confirm they are familiar with swell conditions at [insert port] and with variable swell affecting this port. It is furthermore agreed that sea swell conditions do not render [insert port] an unsafe port for the purposes of this charter. Time lost during discharge arising out of swell conditions will not count towards laytime or time on demurrage”.
Chris Ward – firstname.lastname@example.org